Ken Mahon v Cork City Council
| Jurisdiction | Ireland |
| Judge | Ms. Justice Dunne |
| Judgment Date | 21 October 2011 |
| Neutral Citation | [2011] IEHC 555 |
| Court | High Court |
| Date | 21 October 2011 |
[2011] IEHC 555
THE HIGH COURT
BETWEEN
AND
HOLLAND v GOVERNOR OF PORTLAOISE PRISON 2004 2 IR 573 2004/22/5036 2004 IEHC 208
MCEVOY & SMITH v MEATH CO COUNCIL 2003 1 IR 208 2003 1 ILRM 431 2002/20/4983
O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237 1990/8/2141
PLANNING AND ENVIRONMENTAL LAW
Development plan
Judicial review proceedings concerning zoning of lands - Application refused but concern raised regarding zoning aspect - Whether zoning of house and curtilage as public open space appropriate or proportionate having regard to objectives of development plan - Zoning and planning objectives - Whether decision to zone all lands including house and curtilage disproportionate, unreasonable or irrational - Interference with decision of planning authority - Whether no relevant material before authority to support decision - Holland v Governor of Portlaoise Prison [2004] IEHC 97, [2004] 2 IR 573; McEvoy v Meath County Council [2003] 1 IR 208; O'Keeffe v An Bord Pleanála [1993] 1 IR 39 and The State (Keegan) v Stardust Compensation Tribunal [1986] IR 642 considered - Planning and Development Act 2000 (No 30), s 10 - Finding that no basis for inclusion of house and curtilage in zoning as public open space (2009/645JR - Dunne J - 21/10/2011) [2011] IEHC 555
Mahon v Cork City Council
The factual matrix of this case concerned the zoning of certain lands at Bishopstown, in the City of Cork as public open grounds. Following previous proceedings on the issue the applicant contended that his subject property was not taken in charge by the local authority and so is not part of a housing estate built in that area but rather remains private land. The crux of the issue that arose was whether or not the zoning of the land as public open space could be understood to include in the dwelling house and its curtilage. An additional major issue was whether the zoning of the house and its curtilage was appropriate or proportionate having regard to the overall objectives of the Development Plan. The issue came before Dunne J. in the High Court.
Dunne J. analyzed the objectives put forward as apart of the development plan and the submissions of the applicant. The area in question was deemed to be zoned as public open space for recreation, open space and amenity purposes. The respondent insisted that the 2009 Development Plan was a valid and lawful plan and could not be impugned insofar as it affects the applicant”s property. The respondent pointed out that the house was not occupied and had not been so occupied as a dwelling for a considerable period of time. The purpose of zoning was to set out the future objectives in relation to particular lands and did not curtail the existing use of the land. The applicant submitted that the plan was disproportionate, unreasonable or irrational and infringed upon the applicants privacy rights. IN deciding Dunne J. considered case law such as O”Keeffe v. An Bord Pleanála [1993] 1 I.R. 39. Dunne J. decided that it was patently obvious that the approach in that case is the best possible approach that should be taken. Dunne J. concluded that the inclusion of the dwelling house and its curtilage in the zoning of the lands as public open space does not, and could not, now or in the future, come within the terms of the objective Dunne J. could see no logical basis, having regard to the objectives of the Council in the Development Plan, for the inclusion of the dwelling house and its curtilage in the zoning as public open space. To that extent Dunne J. decided he would hear the parties further on what appropriate order should be made at this point.
JUDGMENT of Ms. Justice Dunne delivered the 21st day of October 2011
This is a case, in which I previously delivered judgment in respect of two sets of judicial review proceedings on the 22 nd December, 2010. The proceedings concerned the zoning of certain lands at Bishopstown, in the City of Cork as public open space. I refused the applicant the reliefs sought by him in those proceedings. It is not necessary to rehearse in detail the issues and arguments set out in those proceedings again, save to refer briefly to the background of this matter as set out at p. 3 of my earlier judgment where I noted as follows:-
"The applicant herein is the owner of land and premises known as 1 Parkgate Villas, Bishopstown Road, Cork, together with one Jason Healy. The lands and premises consist of a dwelling house and a green area of in or about 0.66 hectares in total. The applicant acquired the interest in the property together with Jason Healy by an indenture of conveyance dated the 28 th October, 2008, made between John McCarthy, Adelaide McCarthy and Jean Morel and Denis McCarthy of the one part and Ken Mahon and Jason Healy of the other part. In the affidavit grounding this application the applicant stated that the property is identified as being zoned 'Residential, Community and Local Services' on the Cork City Development Plan. He said that the subject property was not taken in charge by the local authority and so is not part of a housing estate built in that area but rather remains private land originally retained in the ownership of the builder who built the housing estate at Bishopstown, Cork."
At the conclusion of the judgment previously delivered herein, I said as follows:-
"I do have a concern about one aspect of the zoning. That relates to the question as to whether or not the zoning of the land as public open space could be understood to include in the dwelling house and its curtilage. There is an issue as to whether the zoning of the house and its curtilage is appropriate or proportionate having regard to the overall objectives of the Development Plan and I will hear the parties further on this aspect of the case."
Subsequently I heard arguments from the applicant and Cork City Council in relation to the question posed by me at the conclusion of that judgment. To some extent the arguments before the court were a reiteration of those previously considered by me in the main proceedings.
Mr. Galligan S.C. in his submissions on behalf of the applicant referred to the zoning history of the property as a whole. He referred to Variation No. 5 which amended Policy NHR 11 of the Development Plan. It provided that certain lands were "deemed to be zoned as 'public open space' to protect and provide for land for recreation, open space and amenity purposes". The 2009 plan zoned lands as public open space which contained a reference in Objective ZO15 to public open space as follows:-
"To protect, retain and provide for recreational uses, open space and amenity facilities with the presumption against developing land zoned public open space areas for alternative purposes, including public open spaces within housing estates."
Mr. Galligan also referred to that part of the previous judgment herein, where the planning history is set out at pages 11 and 12. He went on to make the point that there was no rationale to the zoning of the dwelling house and the curtilage thereto as public open space having regard to its existing nature and bearing in mind the lack of any basis for the zoning of the dwelling house and its curtilage having regard to the objective of a zoning of land as public open space. It was contended that the zoning of...
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